Hearing of the Senate Judiciary Committee on Hamdan Decision
HATCH: HAMDAN RULING A YIELD SIGN, NOT A STOP SIGN
Senator Urges Congress to Use Legislative Restraint, Resist Micromanaging War on Terror
Washington - In a Senate Judiciary Committee hearing, Sen. Orrin G. Hatch (R-Utah) today encouraged Congress to resist the temptation to use the Supreme Court's Hamdan decision on enemy combatants as the green light for micromanaging the war, hamstringing the President, and second-guessing the decisions of military commanders.
Hatch's full committee statement follows:
Statement of Sen. Orrin G. Hatch
before the Senate Committee on the Judiciary
"Hamdan v. Rumsfeld: Establishing a Constitutional Process"
Thank you, Mr. Chairman, for promptly holding this hearing. The Supreme Court's decision in Hamdan v. Rumsfeld requires an adjustment in the way we prosecute some of the enemy captured during the war we currently fight. These transnational terrorists have not adjusted their schedules to accommodate either court dockets or legislative calendars. And the expressed determination of the terrorists at Guantanamo Bay to kill Americans has not abated. So if the Court's decision requires our response, let us turn to that task. I want to mention a few considerations which will guide my consideration of the testimony of these distinguished witnesses at the hearing today and of this issue as Congress moves forward.
First, we must examine the Supreme Court's decision in Hamdan v. Rumsfeld for what it says and for what it does not say, not what we can make it say. Critics of the Bush administration, for example, will spin it as a resounding defeat for a vast array of war-related policies, requiring a far-reaching full-scale congressional response. We should resist the temptation to read the decision this way, affecting things far beyond what the case actually addressed.
We must resist the temptation to use this decision as the green light for micromanaging this war, hamstringing the President, and second-guessing the decisions of military commanders. I see the Courts' decision as a yield sign perhaps, but not as a stop sign. The majority's rush to regulate, I think, went too far; the dissenters' preference for deference was more consistent with the separation of powers and necessary for the war we currently fight. Nonetheless, even though the Supreme Court failed to show judicial restraint, Congress should show legislative restraint.
Second, we must never fail properly to define our enemy in the war we currently fight. Our legislative response to this decision will necessarily reflect what we think our enemy really is. The Court unanimously agreed that military commissions, used during wartime since the 18th century, remain a legitimate and appropriate means for trying the transnational terrorists we may capture in the war on terrorism. The Court did not challenge the designation of these fighters as unlawful combatants, did not require that they be treated as prisoners of war, and did not equate them with criminals to be tried in civilian courts.
Whatever adjustments the administration or the Congress make in the procedures to be used by military commissions, therefore, should not end up treating these transnational terrorists like prisoners of war, criminals, or even like our own soldiers. They are none of these. We must have fair and just procedures that both provide justice and maintain our national security interests.
Mr. Chairman, I look forward to hearing from these distinguished witnesses how they read the Hamdan decision. What does it actually say? What does it not say? I also look forward to their suggestions about how Congress must respond, and whether that response reflects accurately the true nature of our enemy and the kind of war we currently wage, a war we must win.
Thank you, Mr. Chairman.
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